Bailey v Lingard [2012] QCAT 656

CITATION: Bailey v Lingard [2012] QCAT 656 PARTIES: Thorin Isake Bailey (Applicant) v Nathan Lingard (Respondent) APPLICATION NUMBER: MCDO1414-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 23 November 2012 HEARD AT: Brisbane DECISION OF: J Bertelsen, Adjudicator DELIVERED ON: 10 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed for lack of jurisdiction. CATCHWORDS: Private purchase of a motor vehicle – agreement conditions – options for refund or provision of roadworthy certificate – creation of a debt – is there a debt APPEARANCES and REPRESENTATION (if any): APPLICANT: Thorin Isake Bailey RESPONDENT: Nathan Lingard REASONS FOR DECISION [1] The applicant claims for the return of the sum of $4,000.00 paid by him for the purchase of a 1982 Mitsubishi L300 Van registration 443LLE (the vehicle). Background and evidence [2] On 15 March 2012 the applicant and respondent entered into a written agreement for the sale and purchase of the vehicle. It was a 30 year old van which given its age appeared to be in a well kept condition and with additions making it suitable as a camper. -- 1 of 3 -- 2 [3] The applicant had reservations in light of a tax invoice number 9061 from Car Tech Automotive an authorised safety certificate (roadworthy certificate) inspector dated 9 March 2012. [4] That invoice reported at the foot thereof 6 items requiring attention before a roadworthy certificate could or would be issued by that entity. [5] The applicant in the agreement reached between the parties dated 15 March 2012 agreed to pay $4,000.00 to the respondent in exchange for the vehicle and signed transfer papers. That in fact occurred. [6] The agreement provided that if the vehicle did not pass roadworthy then “the $4,000.00 to be returned to” the applicant and the “vehicle returned to current registered owner unrepaired OR cost of relevant roadworthy repairs above and beyond mentioned on invoice 9061, be the expense of current registered owner. The vehicle remains the property of” the applicant “and transfer into his name be signed.” [7] It is clear that the agreement anticipated that a roadworthy certificate would have to be forthcoming if for no other reason that transfer of registration could not be effected without one. [8] On 24 March 2012 some 9 days after the agreement the applicant had the vehicle inspected by East Coast Mobile Safety Certificates. This inspection report identified a number of additional items requiring attention. The report did not identify the extent or cost of repairs/replacements required but rather that attention to such items was necessary for the issue of a roadworthy certificate. [9] Subsequently on 5 April 2012 the applicant had an assessment of cost of repairs/replacements undertaken by Auto Brake Service Mt Ommaney (ABS). This assessment did not involve a physical inspection of the vehicle but relied on the production by the applicant of Car Tech invoice 9061 and the East Coast Mobile Safety Certificates report. [10] ABS issued its tax invoice dated 5 April 2012 estimating repairs/replacements at $3,579.33. In terms of “cost of relevant roadworthy repairs” this estimate is totally unreliable given that it has been calculated sight unseen and the fact that it is simply a combination of the 2 previous summations of what was required to be attended to in order to validly issue a roadworthy certificate. [11] Additionally, the ABS estimate for instance, includes rear brakes and universal joints both items already sidelined, having been included in the report at the foot of invoice 9061. Furthermore the estimate includes “timing belt ** parts” an item not referred to in either the 9061 invoice nor the East Coast Mobile Safety Certificates report. How ABS could conclude this item was a necessary repair/replacement without physical inspection is not known. The ABS estimate is useless for the purpose of determining the “cost of relevant roadworthy repairs above and beyond -- 2 of 3 -- 3 mentioned on invoice 9061.” Thus it cannot be determined on the evidence what was to be the “expense of current registered owner”. [12] The applicant asserted that he had given the respondent the chance to choose between refunding the $4,000.00 or bearing the cost of over and above invoice 9061 repairs. He asserted that such was the respondent’s prerogative. Where the cost of over and above repairs was not properly ascertained or ascertainable there was no choice. If repairs over and above invoice 9061 were being pursued the respondent was entitled to know exactly what the cost was and how it was arrived at given that he had already disclosed what he thought was required per force of invoice 9061 to enable a valid roadworthy certificate to be issued. It was never an open invitation to make good any defects/shortcomings not required strictly for a roadworthy certificate in respect of a $4,000.00 motor vehicle. [13] Nor is it enough to classify the assertion of a $4,000.00 refund as a debt where in the relevant agreement it is an option only and there is insufficient evidence to enliven that $4,000.00 option as the preferable or valid ground for prosecuting the agreement. [14] The agreement between the parties is an agreement between 2 private individuals. The only category under which this claim could be included in terms of section 12 of the QCAT Act is as a minor debt. For the reasons stated above it never got to the point of being able to be categorised as a minor debt. [15] The claim is dismissed for lack of jurisdiction. -- 3 of 3 --